February 22, 2006

Yesterday, the Supreme Court agreed to hear the case about the federal Partial-Birth Abortion Ban Act, which makes it a crime to kill when the "entire fetal head" or "any part of the fetal trunk past the navel" is outside of the womb, except when the woman's life is at risk. There is no exception made where the procedure is needed to preserve the woman's health, but Congress made findings that "partial-birth abortion is never medically indicated to preserve the health of the mother" and that "there is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures."

The doctors challenging the law disagree with that second finding and say that the alternative method involves breaking up the fetus inside the woman, creating bone fragments that can puncture the uterus. That is, Congress is forcing some women, who need a late-term abortion to preserve their health, to destroy the fetus with a method that is at least as brutal to the fetus and more harmful to the woman.

Ever since Roe v. Wade and its companion case, Doe v. Bolton, in 1973, the court has required exceptions for health as well as life in any regulation of abortion. But the vote in the [Court's earlier "partial-birth" abortion] case, Stenberg v. Carhart, was 5 to 4, with Justice Sandra Day O'Connor in the majority. It is highly likely, therefore, that her successor, Justice Alito, will be in the position to cast the deciding vote. The dissenters in the Nebraska case were Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy, along with Chief Justice William H. Rehnquist, who has since been replaced by Chief Justice John G. Roberts Jr.

After the court's announcement, groups on both sides of the abortion debate tried to attach some significance to the decision to accept the case. In fact, it would have been highly unusual for the court to turn down the appeal. A lower court's invalidation of a federal statute has an almost automatic claim on the justices' attention, even those justices who may view the decision as correct or those who may not necessarily agree in this instance with the administration's description of the case as "extraordinarily important."

The difference between this case and Carhart, other than the change in the Court's personnel and the fact that this is a federal, not a state law, is that Congress made those findings. In that light, this becomes a case about how much the Court ought to defer to a legislature when it acts in an area of individual constitutional rights and makes assertions about facts in order to define away those rights. I do not think that is territory the Court should cede to the legislative branch. It is the Court's duty to say what rights are, and if rights are to be rights, a legislature seeking to work its will should not also have the power to structure the factual setting to make it look as though rights it wants to preclude do not exist.

Meanwhile, the South Dakota legislature is about to ban all abortions unless the woman's life is in danger:

"I'm convinced that the timing is right for this," said State Representative Roger Hunt, a Republican who has sponsored the bill, noting the appointments of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. to the court.

"The strong possibility of a third appointee sometime soon makes this all very real and very viable," Mr. Hunt added, a reference to conjecture that Justice John Paul Stevens, 85, might soon retire. "I think it will all culminate at the right time."

36 comments:

Passing a law in clear, unambiguous violation of a long-standing Supreme Court precedent and arguable "super precedent" in the hopes that John Paul Stevens is going to retire or die between the bill's passing and the time it reaches the Supreme Court on appeal is one of the more cynical things I've ever come across. Such a law sounds almost idential to the pre-Roe laws that the court invalidated 35 years ago.

Of all the legal argumens you can possibly make, "seven Supreme Court Justices were wrong" and "the less religious members of the Court are about to die" are two or the least persuasive, most cynicaly, and most popular among religious conservatives.

I don't know if it will work, but I hope it doesn't. Since Roe, there have been a number of states that have passed laws restricting and regulating abortions (as opposed to banning them outright.) These are the laws that require parental consent for minors, a 24 or 48 waiting period, and so forth. When plaintiffs bring suits challening these laws, one of their leadings arguments is that "Roe was wrongly decided."

It strikes me as cynical because basically they're arguing that, if the court had different personnel, Roe and Casey would have come out differently, which is probably true, but its impolite to say so, especially to the faces of the Supreme Court justices. Secondly, Roe was a 7-2 decision, and its fundamental ruling has been upheld on many occasions, making the above-mentioned argument that much more political and that much less "legal" in its function.

Would it be less cynical to claim that the values of our society have evolved in the 33 years since Roe to the point where the right to abortion is no longer part of the living Constitution? It's really just another way of saying the same thing.

With the description of the procedure, I am not sure of how there could be a real medical, versus psychological, reason for this procedure. I am not an expert on human birthing, but it would seem to be that it would necessitate being performed when a woman is one or two contractions away from an induced early labor. In other words, you kill the pre-baby (nice hopefully neutral term) most of the way through (induced early) delivery. How eliminating the remaining small part of delivery being physically medically necessary seems a bit far fetched.

I reread Roe v. Wade yesterday, and was struck by a couple of things (and, yes, abortion caselaw has gone beyond that now). As you all remember, the Justices essentially divided pregnancy into three fairly even parts, where the woman's interests were compelling in the first trimester, and the state's interests were compelling in the third trimester, but that the woman's health had to be taken into account there. The distinction seemed to be somewhat based on quickening as the first division and viability as the second. I say seemed because they talked a lot about both, and pointed out the timing, but didn't really tie them.

In any case, if abortion law had not progressed since then, it doesn't appear from the decision that these Justices would have bought into psychological harm to a mother overriding this compelling state interest.

Another note is that they talked about different religious takes on when life starts, etc., and mentioned prominently was Catholocism, which took a stricter view than Judaism and Protestantism. It should be remembered that 5 Justices are now apparently RC.

So, if they wanted to draw a line here, those five could go back to Roe and just clarify that in such a late pregnancy, a mother's psychological health, versus her physical health, did not override the state's compelling interest.

I do find the inclusion of Congressional fact finding interesting here, since traditionally it seems to be more compelling to some of the Justices who would vote against the law, than those who would tend to vote in favor of it.

Also, I would think that the marijuana law decision might have some relevance here, since Congressional (and agency?) fact finding seemed to overrule any real fact finding - which the plaintiff doctors seem to want to use to override Congress.

btw, If my understanding here is a little weak in places, it is because I am male and don't follow these subjects that closely. They just aren't all that important to me. Sorry.

Paul said Would it be less cynical to claim that the values of our society have evolved in the 33 years since Roe to the point where the right to abortion is no longer part of the living Constitution?

Yes, that would be less cynical, but that doesn't reflect the reality of the debate.

If American society had truly turned against the right to abortion, then the proper approach to overturning Roe would be to ammend the constitution. But people who are opposed to abortion know they wouldn't be able to pass such an amendment, so instead they are taking the political route of trying to get a new ruling from a different set of justices, thus leading to the death watch described in the article.

It feels like they are gaming the system, rather than respecting the constitutional process.

Geoduck, or struggle over the decision of having a grossly deformed baby that can incur huge medical costs. The government will make that decision for you. Funny, it used to be that conservatives were against intrusive government mandates.

I know this isn't the entire point, but could someone please briefly describe the medical condition(s) which the mother could have for which this procedure ("partial-birth abortion") is the necessary or desired treatment? I am completely ignorant on this topic.

Would it be less cynical to claim that the values of our society have evolved in the 33 years since Roe to the point where the right to abortion is no longer part of the living Constitution? It's really just another way of saying the same thing.

Or another way to put it, since Roe was simply and clearly a case of the Court trying to legislate its preferred public policy from the bench, now that we have a new Court, the public policy can change.

Yeah, but I'm more worried about a situation in which the fetus is missing a brain and is going to die days after birth, and bringing the baby to term could be dangerous in certain rare situations. (what's it called when the fetus doesn't have a brain, just a brain stem?)

Or due to health complications I would have to worry about loosing my fertility; or excessive blood loss; or if I got cancer and had to make some very bad decisions.

It's unlikely, but I'm pissed that it's even a possibility. I'm really pissed. I guess I'd better save up money in case my husband and I have to go to Canada for an emergency health procedure.

I'm so annoyed. If I were ten years older I would have had all my children already. I'd be pissed about future women having health problems, but at least it wouldn't be personal.

These idiot politicians don't care about the rare woman's health complications. They see a great wedge issue and then they WORK it baby! I hope that winning political power is worth it for them. Oh well, why wouldn't it be? They don't care if a few women loose their ability to have children or if they die in a rare circumstance.

I doubt they'd loose any sleep whatsoever. These are very rare conditions. And I seriously doubt Karl Rove was crying over the people who drowned during Katrina, so why would he, or the other politicians care if a few women loose their fertility or have health problems? All they care about is political power. Bah.

Oh Crap. I knew we'd loose the health exception when Bush got re-elected. O'Connor was the only justice holding it in place. Once she retired, the health exception was gone. I shouldn't be surprised by this. Yet here I am, expecting against all hope that the politicans would "care" about a woman's health.

Don't worry, you can always go to Canada. Not only that, but if you do have a child that needs $100,000 or more worth of intensive care, up there, you won't have to pay for it, while here (with the new bankruptcy bill that went into effect last October) there is a good chance that your house could be taken to pay the hospital and you and junior could end up living in a homeless shelter.

If American society had truly turned against the right to abortion, then the proper approach to overturning Roe would be to ammend the constitution. But people who are opposed to abortion know they wouldn't be able to pass such an amendment, so instead they are taking the political route of trying to get a new ruling from a different set of justices, thus leading to the death watch described in the article.

Quite possibly such an amendment wouldn't pass. Would I be willing to get a new set of justices reinterpret the old constitution and overturn RvW? You bet I would.

Let's pretend it is a slavery amendment and I know it won't pass. Do I still want SCOTUS to abolish it? Yes, indeedy.

If I think (and I do) that an unborn baby is as much a person at two weeks gestation as at nine months gestation, then it doesn't matter to me what "political route" we take to see that person's life saved.

I don't want to get into some abortion debate. I just want you to try to comprehend the "other side" of the debate:

We see fetuses, even embryos, as babies. Where you see the word "abortion" I see the words "baby killed" because that is what it means to me. If every time you see it, you imagine a two year old, then you will understand the horror it is to me.

I am not asking that you agree with me (!), just that you recognize that most of us in the pro-life movement see it that way. It might make us seem less vilianous and more human.

We aren't all politicians. We aren't all looking for a political wedge. We don't all ignore women's health.Most of us just want to see the killing end.

It is the Court's duty to say what rights are, and if rights are to be rights, a legislature seeking to work its will should not also have the power to structure the factual setting to make it look as though rights it wants to preclude do not exist.

Right, that's why it's inappropriate for a legislature seeking to work its will to have the power to structure the factual setting to make it look as though the rights it wants to preclude do not exist because of a loosened definition of "public use" or "blight."

Seriously, though, wouldn't overturning Roe v. Wade be federalism at its best? People express outrage over the Court's narrow definition of a right, and the state legislatures supply the missing protection for the individual through state statutory law.

Should the Supreme Court or the constituents of the entire nation determine the scope of a government power that is most significant at the personal level? The majority within a state or city is going to have a different outlook. Presumably, when a state like South Dakota wants to make abortion illegal, the people in the state support it, so we shouldn't expect the pro-choice people to be as enthusiastic about protecting abortion rights when its not going to affect them personally. And a state which bans abortion will probably have greater concentrations of conservative voters, who are less enthusiastic about abortion rights than the citizens of the whole country.

If American society had truly turned against the right to abortion, then the proper approach to overturning Roe would be to amend the constitution. But people who are opposed to abortion know they wouldn't be able to pass such an amendment, so instead they are taking the political route of trying to get a new ruling from a different set of justices, thus leading to the death watch described in the article.

It feels like they are gaming the system, rather than respecting the constitutional process.

Giggle. Is that an attempt to be a parody of pro-lifers arguments against Roe v. Wade in the first place? After all, if American society ad truly turned in favor of the right to abortion, then the proper approach to would be to amend the constitution. But people who favor abortion rights knew they wouldn't be able to pass such an amendment, so instead they took the political route of trying to get a new ruling from a different set of justices, considering that previous Supreme Court opinions had specifically disclaimed a right to abortion.

What's this, people who favor abortion can sue as much as they want in order to try to get the result that they favor through the Courts, but people who don't can't? Once your side wins once, the game's over?

I favor federalism myself, personally, but certainly the attitude of pro-lifers is only an understandable reaction. Neither side could get a constitutional amendment passed, and everyone knows that.

All those "idiot politicians" favor health exemptions. What they don't favor are health exemptions that include mental health, because it's viewed as (and is) a giant loophole.

Don't worry, you can always go to Canada. Not only that, but if you do have a child that needs $100,000 or more worth of intensive care, up there, you won't have to pay for it, while here (with the new bankruptcy bill that went into effect last October) there is a good chance that your house could be taken to pay the hospital and you and junior could end up living in a homeless shelter.

Actually:1) You have to pay for abortions in most places in Canada. See their Morgantaler decision for more information.2) You have to pay for medical care in Canada if you're not a Canadian; you need some sort of outside insurance.3) The bankruptcy bill only affects people who currently have an income higher than the median income in their area.4) Even so, there's a homestead exemption. They don't take your house. The only difference is that people who are currently making over the median income are much less likely to be allowed to completely erase their debts, but are forced to make some payments towards them. It doesn't force anybody into a homeless shelter. If you had any chance of being forced to live in a homeless shelter, then the bill has zero chance of affecting you.

I know this isn't the entire point, but could someone please briefly describe the medical condition(s) which the mother could have for which this procedure ("partial-birth abortion") is the necessary or desired treatment? I am completely ignorant on this topic.

Mike,

Well, I'm certainly not a doctor, but I was also curious, not the least because my husband and I are going to have our children (if we are so blessed) in the next few years. If the health exception is getting dropped for pregnancy complications, I definitely want to know why and what my risk factors are.

Anyways, this is what I've found out so far. There is a rare condition called fetal hydrocephalus. In some cases it is not serious, and can be correct. In other rare cases "a fetal head can be as large as 50 centimenters and contain almost 2 gallons of cerebrospinal fluid."

In an intact dilation and extraction (d&x) the doctor collapses the fetal head to it can get through the cervix.

Other reasons for health:

1) A woman gets a very serious illness (cancer?). She's not healthy enough carry the fetus to term. She's second trimester. A intact D & E is easier on her body then a Cesarean Section or induced labor.

2)Or a woman finds out that her second trimester fetus has a serious birth defect (like the fetus is missing a brain- its called something I can't remember - anecephaluls?sp?). The fetus isn't viable and it's going to die after being "born". I guess we could force that woman to give birth or have a cesarean section.

But I'm going to be pissed off if this happens to me or any female relative of mine! These idiot politicians are going to potentially make me give birth to a dead baby because you can't be bothered to put in a health exception!?!

Anyways, from what I could discover, apparently a D&X is safer then a non intact D&E because a non intact d&e is more likely to perferate the uterus or cause infection. If the D and E is not intact, there's more likely that part of the fetus or tissue will be left in the uterus and cause infection. Or that the doctor will perferate the uterus during the operation.

I'm not a doctor, however, and would appreciate anyone commenting who is a OB/GYNs.

Judge-shopping --- which is effectively what people here are talking about --- undermines respect for the law. The whole approach of the pro-life movement over the past thirty years has implied that it's not about the constitution, it's just about getting some people who agree with your side onto the bench.

Here we have a Supreme Court ruling that has been reaffirmed multiple times over thirty years. The original ruling was seven to two. And yet the response is, "oh, we just need to keep trying until we get a set of justices who agree with us."

I don't think that's how the process of the evolution of constitutional law and interpretation is supposed to work. If you don't like the rights laid out by the U.S. constitution as repeatedly reaffirmed over thirty years, then you should stand up and attempt to amend the constitution through the process outlined by the Founders.

By not taking that forthright approach, the pro-life movement has told the American public year after year that we aren't ruled by laws and constitutional principals, that instead it's all just about politics and who controls the levers of power.

If you don't like the rights laid out by the U.S. constitution as repeatedly reaffirmed over thirty years...

I don't think you really meant to give the impression that you believe the Constitution was ratified in the 1970s. Say rather, "the rights laid out by the U.S. constitution as repeatedly reaffirmed over 217 years, the first 184 of which don't count."

Its not a matter of social policy changing, and some of the commenters have suggested. Social policy is always evolving. South Dakota has passed at law explicity at loggerheads with decades of Supreme Court precedent. Its not regulating abortions - which the Supreme Court has held that states can do -- it is banning it outright. That would be almost without precedent in American history and, yes, the Supreme Court judges, including Scalia and Thomas and whoever else, would be ACTIVISTS if they uphold it.

What message does this send to the other states? To keep passing unconstitutional statutes until at long last find five Supreme Court justices who will agree to overturn decades of precedent? If so, that has dangerous implications. If you think that the Supreme Court confirmation process is contraversial right now, wait until you see what happens when a group of judges goes against decades of settled precedent to say that a state has a right to force a woman to give birth every time she gets pregnant, for any reason, regardless of adverse health effects to the mother. Confirmation battles will become full-fledged civil wars.

Its not a matter of social policy changing, and some of the commenters have suggested. Social policy is always evolving. South Dakota has passed at law explicity at loggerheads with decades of Supreme Court precedent. Its not regulating abortions - which the Supreme Court has held that states can do -- it is banning it outright. That would be almost without precedent in American history and, yes, the Supreme Court judges, including Scalia and Thomas and whoever else, would be ACTIVISTS if they uphold it.

Herein lies the problem – there is nothing in the Constitution which gives the federal courts any say in what laws a State passes regulating or even outright banning abortions. Roe (and now Casey) was simply a case of seven members of the SCOTUS deciding that they personally would prefer that States had different laws (try reading the decision sometime and you’ll see why it’s a textbook example of an outcome in search of a rationale) and decided to implement their preferred public policy – something that is properly reserved to the legislative branch where people can actually, you know, vote for the laws that they have to live under and have a choice of fifty different jurisdictions that might more closely match their policy preference.

In which case reversing Roe (or rather Casey) simply restores the original and proper constitutional order that leaves public policy decisions like abortion to the State legislatures where they belong.

Respectfully, would you consider parsing your stance with regard to pregnancy progression ... if you think it's appropriate and feel comfortable doing that, of course?

Your examples refer to the 2nd trimester (which indeed is significant because the standard time for an amnio fall smack-dab in the middle of that one). (And I don't say that lightly: my own amnio, for the son I to whom I often refer, was deeply dreaded because in connection with a surgery, I happened to take a very no-no drug when I didn't know I was pregnant.)

What about the 3rd trimester and the progression from 24 weeks on? Particularly in light of the amazing medical breakthroughs with regard to preemies post 26-28 weeks?

Is there a need to look at this with less of a broad brush than "later pregnancy"? Is there any time pre-40 weeks where the consideration shouldn't be solely the mother?

Are both sides wanting to make this so much more black and white than what we know, even scientifically and medically, supports?

I don't think that's how the process of the evolution of constitutional law and interpretation is supposed to work. If you don't like the rights laid out by the U.S. constitution as repeatedly reaffirmed over thirty years, then you should stand up and attempt to amend the constitution through the process outlined by the Founders.

Actually this was supposed to read:

“I don't think that's how the process of the evolution of constitutional law and interpretation is supposed to work. If you want the U.S. constitution to protect a right to an abortion even though it says nothing about the subject, then you should stand up and attempt to amend the constitution through the process outlined by the Founders.”

Geo: I'm sorry if this seems to be singling you out. If it does, ignore it. Because it's not you, nor your sincere worries.

It's just that I notice how often the discussion over true 3rd trimester abortion (well, to be more specific, the ever-evolving point at which preemies of the same age have good chance to survive with intervention of various levels), slides inexorably back to points earlier, when it makes more sense to discuss the d&c as typically understood.

The problem is, it makes less sense, week by week, after a certain point in pregnancy. That's the point. That's the rub.

At some point when you get into later pregnancy, one has to ask: why is it an either/or? A woman, for reason of her literal life being threatened or health being severely compromised, may very well need to end her pregnancy. How does it necessarily follow from that reality that the child, or fetus, or whatever terminology that you prefer, can't be delivered and afforded the same intervention as every other preemie?

I'm sure I'm boring everybody everywhere, but I keep asking: what is it about this elephant that doesn't bear addressing?

Thorley - Since Roe, 13 of the 17 people to sit on the Supreme Court have ruled to uphold its essential ruling, that a woman's right to privacy and to control her own life exceeds the state's interest in potential life and regulation of the medical industry.

13-4 is a blowout. More than three times as many justices have voted to uphold it as have voted to overturn it. The President has the right o appoint whoever he wants to the Supreme Court. You could appoint Pat Robertson to the Supreme Court if you wanted to. Appointing people who come in with their minds made up; appointing them to achieve a specific end, is one thing. The people appointed simply because they are good judges - those on the Roe Court, Kennedy, Souter, etc -- have voted to uphold Roe 13-4. You can keep looking and looking until you find a set of judges who will over turn it, but that doesn't mean the Constitution has changed, only the members of the court.

I think I understand your question. In my opinion should regulation change/ matter/ as the fetus develops in the early 2nd trimester to the end of the 3rd trimester?

Yes, certainly. The way I understand _Casey_, is that there was a dividing line that allowed the state to regulate abortions at viability. There is certainly a difference, to me, between an early 2nd trimester fetus and an 8th month fetus.

In my above posts I am very concerned about the lack of a health exception. I always think that their should be an allowance for the health and life of the mother.

The health of the mother includes things such as coma, stroke, and organ failure. I do not think that the state can take this choice away from the mother. A woman should have the right to choose to risk a coma or stroke or even death. I believe that this must be a woman's choice, not the state's choice.

For example, if I come down with preeclampsia and I am too sick for a c-section, I want to make the choice of whether to risk surgery with my doctor and my husband.

Let us say that the fetus was dying in utero and I had developed preeclampsia? (Or that the fetus had developed without a brain and would die shortly after birth.) Why should I be legally required by the state to risk my health or my life?

I am planning to get pregnant. If I am lucky, and blessed, I will be spared serious health problems. But if a catastrophe happens, it scares me that the state might allow a law to stand without a health exception.

It disturbs me that politicians are using this issue for political gain without much though to women's pregnancy complications.

Seems like a middle ground between two entrenched positions might be to define in the law what conditions are a threat to health and which are not. Neither side would be happy, which is the hallmark of a compromise.